Why the battle over Donald Trump’s financial records will drag on
President Donald TRUMP, who promised in April to fight against “all subpoenas”, was dealt another blow in his battle to keep his tax returns private. In May, a federal judge in Washington, DC refused to quash a subpoena ordering Mazars USA, the president’s accounting firm, to provide the House of Representatives with eight years of financial records. Mr Trump called that ruling “crazy”, blamed an “Obama-appointed judge” and took the case to the Court of Appeals for the District of Columbia Circuit. On October 11, a three-judge panel of that tribunal ruled, by a 2-1 vote, that the request to investigate Mr. Trump’s finances falls under the House’s power to issue subpoenas issued for a “statutory purpose”. But even this second defeat does not mean that the Democrats will get hold of Mr. Trump’s business records anytime soon. The president could play a legal game that could keep the battle brewing even beyond his first term in the White House.
In his majority opinion, Justice David Tatel wrote that after considering “the important issues involved in this case”, he and his colleague, Justice Patricia Millett, found that a subpoena from the House oversight committee was “valid and enforceable.” The subpoena, issued in May, cited four reasons why the committee needed the information: to determine whether Mr. Trump had “engaged in illegal conduct”; if he had an “undisclosed conflict of interest”; if he complied with the anti-corruption regulations in the Salaries Clauses of the Constitution; and if he had “properly reported his finances to the Office of Government Ethics”. Investigating these issues, the committee said, was central to its interest in reviewing “numerous laws and legislative proposals” to tighten ethics rules.
Judge Tatel emphasized that Congress’s subpoena power is not unlimited. “Broad as it is”, the power may not be used to “constitutionally usurp the assigned functions of the other branches” or “infringe on the constitutionally protected rights of individuals”. Congress is not a “law enforcement or probation agency” and cannot pass bills of attainder—that is, laws that punish someone without a trial. The House subpoena to Mazars did not cross the line, Judge Tatel wrote: the House is actively considering at least three disclosure and ethics bills and “interest in past illegalities may be entirely consistent with the intention of implementing remedial legislation”. It stands to reason that legislators could seek financial records from a presidential accountant when drafting laws to strengthen presidential accountability.
The dissenting judge on the panel, Neomi Rao, saw things differently. A recent appointee of Mr. Trump, Judge Rao wrote that the majority opinion in the case “breaks new ground” by blessing the subpoena “as part of the statutory power” when his real design is to investigate “allegations of illegal conduct against the president”. . There should be a clear line between Congress’s power to investigate for legislative purposes and its power to investigate in the service of another constitutionally assigned power: impeachment. “When the Congress seeks information about the president’s crime”, wrote Judge Rao, “it does not matter whether the inquiry also has a statutory purpose”. The two pursuits have nothing to do with each other and should not be concluded: “Simply there are not, and have never been, investigations into crimes within legislative power of Congress”. To confuse the two positions is to risk damaging America’s separation of powers. Allowing the House oversight committee to go through Mr. Trump’s books, Judge Rao wrote, “would turn Congress into a moving cross-examination of a co-equal branch of government.”
Each warring opinion works to negate the main claims of the island, with Judge Tatel rejecting Judge Rao’s explanation as “novel” (twice) and Judge Rao returning the favor. On the main topic it seems that the majority have the biggest argument. “Case law does not support the dissent,” Judge Tatel said, and his colleague’s stance could leave Congress with an all-or-nothing choice between pursuing impeachment and staying. unstable when government officials behave badly. Justice Rao would not allow “even Congress to make the legislative judgment that certain concerns about potential misconduct or illegality are better addressed through directives and legislation than by imposing out of office”. Her opinion also means that only a quick vote in the House announcing the beginning of an impeachment investigation would allow the agency to issue subpoenas in impeachment service. But the constitution does not require such. Another negative effect appears in the dissent’s opinion that it is “unnecessary here to determine the scope of impeachable offences”, as if this determination were something for judges – rather than members of House of Representatives – speaking.
The majority opinion is perhaps better reasoned, but Justice Rao’s 68-page dissent gives the impression that the legality of the House subpoena is a moot point. That gives Mr. Trump’s lawyers a lifeline to keep up the fight either by asking the entire D.C. Circuit court to revisit the question “in the bank” (as a full court) or by going directly to the High Court. Laurence Tribe, a law professor at Harvard, expects “at least five votes” among the justices to uphold Judge Tatel’s decision. He does not believe that Justices Neil Gorsuch or Brett Kavanaugh – both of Mr Trump’s supreme court appointees – would agree with Judge Rao’s analysis.
Looking at the calendar, the president may have a better option than running to the judges. Stephen Vladeck, a law professor at the University of Texas, notes that because Mr. Trump is playing defense, not offense, because the subpoena fight has been playing defense, not crime, he may move away from an aggressive legal strategy that has seen him seek extraordinary relief from the Supreme Court before lower courts. have completed their work. The D.C. Circuit would probably deny Mr. Trump the in the bank but an application for one could put the case on hold for several months, and after being remanded he would have 90 days before having to appeal to the High Court. Because the justices typically give presidents “special testimony” in separation-of-powers cases, Mr. Vladeck says, a majority may temporarily block the appeals court’s decision. so that the High Court can fully consider the case. That means an oral argument a year from now, at the earliest, and a decision well after the 2020 presidential election. In the meantime, the president’s books would remain closed.